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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

DENNIS COKER, on behalf of himself and all others similarly situated, v. THE PURDUE PHARMA COMPANY, ET AL.

This is a class action involving federal preemption. The defendants own a series of patents for the prescription pain medication OxyContin. In prior separate litigation between the defendants and a generic drug manufacturer, a federal district court in New York found that the defendants committed inequitable conduct before the United States Patent Office in procuring the patents. After
this order was entered by the federal court in New York, the plaintiff filed the instant class action in Shelby County, Tennessee, on behalf of all consumers of OxyContin, alleging violations of the Tennessee Trade Practices Act, the Tennessee Consumer Protection Act, and common law
monopolization. These state law claims were based on the defendants' conduct before the United States Patent Office. The defendants removed the case to the federal district court for the Western District of Tennessee. The district court remanded the case back to the Tennessee trial court, holding that the finding of inequitable conduct against the defendants by the federal court in New York
operated as collateral estoppel on the issue regarding the federal patent laws. On remand, the defendants filed a motion for judgment on the pleadings based on federal preemption. The trial court granted the motion. We affirm, finding that the plaintiff's antitrust and unfair competition claims, based on the defendants' conduct before the Patent Office, are preempted by the federal patent laws.

This case involves a divorced parent's obligation to support college-age children. After the divorce, the mother was the primary residential parent for the parties' two children, who are now adults. In 1999, when both children were still minors, the father's child support obligation was increased, and he was ordered to provide to the mother financial documents and financial information necessary to
assist the children with their private high school and college expenses. The mother later filed a petition for contempt, arguing that the father failed to comply. At a 2001 contempt hearing, the mother asked that the father be held in contempt for, among other things, his failure to provide Mother with his 2000 tax returns for a financial aid application for the older child's Ivy League college tuition. The trial court reserved the issue until further evidence could be presented. Soon after the hearing, in June 2001, the older child graduated from high school and the father unilaterally reduced his child support payments without seeking a modification of the trial court's support order.
Four years went by without a court hearing, and both children reached majority. In 2005, the father
filed a petition to resolve all outstanding matters and close the case. After a hearing, the trial court determined that the father was in contempt of court for his failure to provide the mother with the financial documents necessary to complete a financial aid application for the older child's college education and awarded damages to Mother. The trial court further held that the father was not
permitted to unilaterally reduce his child support payments when the older child graduated from high school and, consequently, assessed a child support arrearage against him. The father appeals. We affirm in part and reverse in part holding, inter alia, that once the parties' child was emancipated, the trial court was without authority to require the father to provide financial documents to assist her in obtaining college financial aid.

Robert E. Cooper, Jr., Attorney General and Reporter; and Warren A. Jasper, Assistant Attorney General, for the appellee, Tennessee Department of Labor and Workforce Development, the Commissioner of the Tennessee Department of Labor and Workforce Development and the
Tennessee Occupational Safety and Health Review Commission.

Judge: CLEMENT

A construction company appeals the finding it violated an Occupational Safety and Health Administration regulation that prohibits employees from entering a large excavated trench that does not contain adequate protection to prevent the earthen walls from collapsing on employees. The company contends it did not violate the regulation because its foreman was the only one who entered
the unprotected trench and a foreman is not an "employee" as that term is defined by the controlling regulations. In the alternative, assuming a violation occurred, the company contends it is not liable because the foreman's actions constituted employee misconduct. The State of Tennessee
Occupational Safety and Health Review Commission found the company in violation of the regulation and liable for the conduct of its foreman. The Davidson County Chancery Court affirmed the decision of the Commission upon a Petition for Review filed by the company. We affirm.

The issue presented in this case is whether the plaintiff can amend its complaint on remand to the trial court after the Supreme Court affirmed dismissal of the plaintiff's claims on interlocutory appeal. Freeman Industries LLC filed a two-count complaint, alleging unjust enrichment and
violations of the Tennessee Trade Practice Act ("TTPA"), Tenn. Code Ann. Section 47-25-101, et seq. (2001). The trial court granted defendants' motion to dismiss the TTPA claim but denied a motion for summary judgment on the unjust enrichment claim. On interlocutory appeal, the
Court of Appeals affirmed as modified, and the Supreme Court granted permission to appeal. The Supreme Court affirmed in part and reversed in part and remanded for further proceedings consistent with its opinion. In its opinion, the Court established a new pleading standard for
TTPA claims, then held that Freeman's complaint did not state a cause of action under the new standard. The Court further held that the trial court erred in denying the defendants' motion for summary judgment on the unjust enrichment claim. On remand, the trial court denied Freeman's motion to amend its complaint. After careful review, we hold that the trial court abused its
discretion by denying Freeman's motion. Accordingly, we reverse the decision of the law court and remand.

Daniel Allyn Hood, (DOB: 12/05/89), a juvenile, was found to be delinquent by the Sullivan County Juvenile Court. The order of that court placed temporary custody of Hood with the Department of Children's Services ("DCS") "for an indefinite period of time." The defendant appealed to the trial court, which, after a jury trial, found the defendant to be delinquent on the basis that he had committed the adult offenses of kidnapping and aggravated rape. The order of the trial court awarded Hood's custody to DCS, "determinately until his 19th birthday." The
defendant appeals, asserting that the trial court's decree of a determinate commitment, rather than an indefinite commitment, is erroneous and a violation of the United States and Tennessee Constitutions. The defendant also raises several issues with respect to the propriety of certain
jury instructions. We affirm.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Elizabeth Rice, District Attorney General and Walt Freeland, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The appellant, Anthony Alston, was indicted with possession of more than .5 grams of cocaine with the intent to deliver and felony possession of cocaine. The appellant pled guilty to the charges, but agreed to allow the trial court to determine the length and manner of service of the sentence. After a sentencing hearing, the trial court merged the two convictions and imposed a sentence of nine years for possession with intent to deliver more than .5 grams of cocaine. Further, the trial court ordered
the nine-year sentence to run consecutively to a sentence for which the appellant was on Community Corrections at the time of the current offense. The appellant appeals, arguing that the trial court improperly enhanced his sentence. For the following reasons, we affirm the judgment of the trial court.

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, David Brimmer, filed in the Anderson County Criminal Court a petition for post-conviction relief, alleging that the trial court allowed him to plead guilty to aggravated kidnapping when he had not been indicted for that offense and that the trial court improperly sentenced him under the 1989 Sentencing Act. The post-conviction court denied the petition. On appeal, the petitioner contends that the post-conviction court erred in denying the petition without conducting an evidentiary hearing. Upon our review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Michael E. Moore, Acting Attorney General & Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Nicole Germain, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Andre Dotson, appeals from his 2005 Shelby County Criminal Court jury convictions on two counts of aggravated robbery and two counts of robbery. On appeal, the defendant claims that the trial court erred (1) in joining four indictments for trial, (2) in severing, on the morning of
trial, the charges against a co-defendant, (3) in excluding the co-defendant's pretrial statement as evidence offered by the defendant, (4) in failing to hold that the evidence was insufficient to support three of the convictions, (5) in denying the defendant's motion to allow him to sit with his attorney at the counsel table, (6) in failing to instruct the jury as to the shortcomings of eyewitness testimony,
and (7) in sentencing the defendant as a multiple offender on two convictions and as a persistent offender on two convictions. We reverse one conviction of robbery but affirm the court's judgments, as modified.

Paul Walwyn, Madison, Tennessee for the appellant, Robert Lee Hammonds.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Dee David Gay, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Robert Lee Hammonds, pled guilty to possession of over 26 grams of cocaine. Pursuant to Tennessee Rule of Criminal Procedure 37, the Defendant reserved four certified questions of law relating to whether the trial court erred when it denied his motion to suppress
because the traffic stop and subsequent search were unconstitutional. He contends that the officer exceeded the scope of the stop and that the mandatory blanket consent form that he signed as part of a previous community corrections sentence did not give the arresting officer consent to search his vehicle. Further, he contends that he revoked any consent given by the mandatory blanket consent. Finding no error, we affirm the judgment of the trial court.

A Marshall County grand jury returned two indictments against the Defendant, Grady Wayne Mealer, case numbers 16719 and 16721. The Defendant entered open pleas to both indictments. He pled guilty, in case number 16719, to four counts of burglary, two counts of Class A misdemeanor theft, and one count of possession of burglary tools and, in case 16721, to one count of driving on a revoked license. Following a joint sentencing hearing, the trial court ordered the Defendant to serve an effective six-year sentence as a career offender in case number 16719. In case number 16721, the Defendant received an eleven-month and twenty-nine-day sentence with a minimum service of 75%. The trial court ordered the sentences in case numbers 16719 and 16721 to be served consecutively to one another and to a prior six-year sentence for burglary. On appeal,
the Defendant argues that the trial court committed sentencing errors and that his two convictions for Class A misdemeanor theft violate principles of double jeopardy. After a review of the record,double jeopardy principles require us to dismiss one of the Defendant's convictions for Class A misdemeanor theft. Therefore, the case is remanded for the entry of corrected judgment forms. In
all other aspects, we affirm the sentencing decision of the trial court.

This is a direct appeal as of right from convictions on a jury verdict of one count of child rape and two counts of rape. For these convictions, the Defendant, Charles L. Williams, received an effective twenty-two-year sentence in the Tennessee Department of Correction with 100% service required. On appeal, the Defendant raises six issues: (1) the trial court erred in admitting hearsay testimony
of the victim; (2) the evidence was insufficient to support the jury's finding of guilt beyond a reasonable doubt on the charges of child rape and rape; (3) the trial court erred in allowing the State's DNA expert witness to speculate about the significance of the ratio of DNA discovered under
the Defendantís fingernails; (4) prosecutorial misconduct requires a new trial; (5) the trial court gave erroneous jury instructions when it stated the elements of child rape could be satisfied by a showing Of a mens rea of recklessness; and (6) the trial court erred in failing to merge the lesser rape
convictions into the child rape conviction. We have concluded that the trial court erred by allowing certain speculative testimony by the Stateís DNA expert witness. We also have concluded that the prosecutor engaged in misconduct during closing argument. In addition, the two rape convictions should have been merged into the child rape conviction. We have determined that the cumulative
effect of the trial errors deprived the Defendant of a fair trial. Judge Welles also concludes that the trial court erred by giving erroneous jury instructions for the requisite mens rea. We reverse the convictions and remand for a new trial.

Two Memphis City Council members have been indicted on federal bribery charges, and a perennial political candidate and businessman has been charged with money laundering. They were arrested today, the Commercial Appeal reports.

District Attorney Bill Gibson, suspended from the practice of law and the subject of a TBI investigation, has challenged Judge Leon Burns' appointment of Tony Craighead as 13th Judicial District Attorney General Pro Tempore. Gibson maintains that his office is not officially vacant and that the judge's action, taken without a hearing, violates his constitutional rights.

Knoxville crack house manager Richard Jones Jr. gambled that a confession he'd made in a plea agreement couldn't be used against him -- even after he'd backed out of the deal. A 6th U.S. Circuit Court of Appeals ruling Wednesday affirmed that he'd made a bad bet.

Oral arguments Wednesday suggest that Supreme Court Justice Anthony Kennedy holds the key to the outcome of the court's first case assessing the environmental impact of global warming, the Legal Times reports.

Longtime Memphis lawyer and writer D. Beecher Smith II has been indicted on federal child pornography charges. Smith, 57, had represented Elvis Presley during the last year of his life, the Memphis Commercial Appeal reports.

Memphis Bar Association President Barbara Zoccola will pass the gavel to MBA Vice President David Cook on Dec. 7 during the final installment of the MBA's "Law Inspires" series at The Peabody Hotel. The event is scheduled for noon to 2 p.m. and will feature Shelby County Mayor A C Wharton speaking on "Law Inspires ... Leadership."

The Nashville Bar Association will hold its annual meeting and banquet on Dec. 7 at the Loews Vanderbilt Hotel. A reception begins at 5:30 p.m., with dinner and program to follow at 7 p.m. Highlights of the event include the passing of the gavel from President Sheree Wright to President-Elect Lela Hollabaugh, introduction of the NBA officers for 2007 and presentation of awards.

Nashville attorney Charles "Charlie" Ray passed away yesterday after suffering a heart attack while traveling to Kentucky. He was 65. Visitation will be held tomorrow, Friday, from 4 to 8 p.m. at Marshall Donnelly-Combs. The funeral will be held on Saturday, beginning at 10 a.m., with burial to follow at 1 p.m. in GreenLawn Cemetery in Franklin, Ky.